P.N. Mookerjee, J.
1. A short question arises in this appeal.
2. The appellant was the defendant in a suit for setting aside an ex parte mortgage decree on the ground of fraud and non-service of summons. The plaintiff had previously applied unsuccessfully to have the decree set aside under Order 9, Rule 13 of the Code of Civil Procedure. The only point is whether the present suit is maintainable and whether the findings, on which the learned Subordinate Judge has answered that question in the affirmative and granted the plaintiff a decree, setting aside the previous ex parte decree and reviving the original suit, are sufficient in law for the said purpose.
3. The ex parte decree which was sought to be set aside in the present suit was passed in a mortgage suit (T. S. No. 80 of 1945), brought by the present appellant as plaintiff against the present respondent as defendant. The preliminary decree was passed ex parte on April 27, 1945, and It was made final in March, 1946. On September 17, 1946, the present plaintiff who was the defendant in the mortgage suit applied under Order 9, Rule 13 of the Code of Civil Procedure ifi Miscellaneous Case No. 298 of 1946 to have the said decree set aside upon the ground of non-service of summons. His application was rejected up to the appellate court upon the finding that the summons had been duly served. He then filed the present suit on March 1, 1948, alleging, inter alia, that the plaintiff's claim in the mortgage suit was false and the ex parte decree was obtained by perjured evidence and suppression and non-service of summons. The learned Munsif rejected all the said allegations and dismissed the suit. On appeal the learned Subordinate Judge has come to a different conclusion and decreed the suit upon the finding that the summons was not served upon the present plaintiff in the mortgage suit and it was fraudulently suppressed. He has not, however, come to any specific finding on the other questions, namely, whether the mortgage claim was false or whether the suit was decreed on perjured evidence. The propriety of this appellate decision is now challenged by the present defendant appellant and the only point which requires consideration is whether the suit is maintainable and whether the findings of the learned Subordinate Judge are sufficient for passing a decree in the present plaintiff's favour.
4. It is settled law that where the fraud alleged is of such kind as to attack the suit itself and not merely the regularity or sufficiency of the service or the proceedings, a suit by a person on whom no summons was served, for setting aside the ex parte decree is maintainable, it is also settled law that mere falsity of claim and/or perjured evidence if non-service of summons be not proved will not support the action. The plaintiff, therefore, in a suit for setting aside an ex parte decree on the ground of fraud when he was unsuccessful in his application for setting aside the ex parte decree on the ground of non-service of summons must prove some kind of fraud, which, affects the suit itself and not merely the regularity or sufficiency of the service or the proceedings, in addition to non-service of summons in order to obtain a decree. Falsity of claim would, amount to such fraud, though, possibly, mere perjured evidence, unless the claim was false, would not. In order, therefore, that the plaintiff may succeed in the present suit, it is necessary to establish that the mortgage claim was false. On that point the learned Munsif found against the plaintiff. The learned Subordinate Judge has not recorded any different conclusion. He has reversed the learned Munsiff's decision, dismissing the suit, and decreed the suit simply upon the finding that no summons was served upon the plaintiff in the mortgage suit and that it was fraudulently suppressed. That is not supportable in law and the learned Subordinate Judge's decision must, therefore, be set aside.
5. The appellant has contended that the rejection of the present plaintiff's application for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure upon the finding that the summons was duly served in the mortgage suit would operate as res judicata to bar the present suit. We do not think that that contention is sound in law. The Privy Council case of Khagendra Nath Mahata v. Pran Nath Roy, ILR 29 Cal. 395: 29 Ind App 99 (PC) (A), concludes the appellant on this point. Here the fraud alleged included, inter alia, falsity of the claim which really attacked the suit itself and challenged it as a false suit. It was not confined to service of Summons but was also extraneous to and independent of such service. It was not merely an attack on the regularity or sufficiency of the service or the proceedings but an attack on the whole suit as a fraud from beginning to end. There were no doubt allegation also of perjured evidence and fraudulent suppression of summons. But those were really treated as part of the main allegation of fraud that the claim, that is, the suit itself, was a false one, for which there was absolutely no foundation and on or in which a fraudulent ex parte decree was obtained. The Order 9, Rule 13 proceeding again was decided merely on the finding that non-service of summons was not proved. The finding, that summons was served, does not, in our opinion, in the context in which it appears, mean anything more. The question of fraudulent suppression of summons or the falsity of the claim which might well have provided a motive for such suppression was not at all considered. In these circumstances, no question of res judicata arises in the present case. We therefore, reject the appellant's plea in that behalf.
6. In view of what we have said above, the present suit would be maintainable and the plaintiff will be entitled to a decree if his allegation be proved. As to non-service of summons or fraudulent suppression of the same, the lower appellate court has found in the plaintiff's favour and that finding on the said question or questions of fact is final. It is accordingly, affirmed. The learned Subordinate Judge, however, has not dealt with the other essential question, namely the question Of falsity of claim and he has merely stated the plaintiff's allegation in that behalf without coming to any finding on the said point. The case, therefore must go back to the court below for a proper finding on that point. If the finding be in the plaintiff's favour, his suit will be decreed; in the event of a contrary finding, the learned Subordinate Judge will dismiss his suit.
7. The appeal is allowed as above, the decree of the learned Subordinate Judge is set aside and the case is sent back to the court below to be dealt with in accordance with law in the light of the observations, contained in this judgment.
8. Costs of this appeal will abide the final result.
9. I agree.